We’re still here for you! We’re happy to meet with you virtually via phone or Zoom, and we can meet in person at our Sarasota office for signings, etc. Our office and private conference room are sanitized regularly and we take all reasonable precautions for our vulnerable clients. In-home appointments are available for those who need them. Through April 30, we’re offering free Florida Health Care Directives to residents of Sarasota, Manatee, and Charlotte counties who need them. Read more...
Personal services contracts are very popular in long-term care planning – especially when Medicaid benefits are sought. But they may not be the best solution.
Long-term care in a nursing home (also called a rehabilitation center) is expensive. Many people who are receiving or will be receiving long-term care have little in savings and face impending impoverishment. Medicaid rules allow certain planning measures that may preserve some of the applicant’s assets for his or her family.
One of these measures is known as a personal service or lifetime care contract. This legal contract specifies the compensation a family member will receive in return for providing lifetime personal care and oversight of professional care for the nursing home resident. The Medicaid rules and the family situation will dictate how much compensation can be paid.
In most states, the caretaker is paid in installments as the care is provided. But, in Florida, the caretaker can receive the compensation as a lump sum payment. The caretaker receives the compensation up front, but is legally obligated to provide care for as long as the nursing home resident is alive.
This lump sum payment is considered compensation by the IRS and is taxable income to the caretaker when received.
I’m going to repeat that because it’s so important:
This lump sum payment is considered compensation by the IRS and is taxable income to the caretaker when received.
The Internal Revenue Code § 61 defines gross income as “…all income from whatever source derived, including (but not limited to) the following items: (1)Compensation for services, including fees, commissions, fringe benefits, and similar items…”
Some people think that just because they don’t receive a 1099 or W-2 for certain income, they don’t have to report it on their tax return. Wrong! Just because the IRS may not be notified of the payment doesn’t mean it doesn’t have to be reported. All income – even illegal income – must be reported or you’re committing tax fraud.
If you’ll be receiving compensation due to a personal service contract, be sure to talk to your tax professional before signing the contract because the tax consequences of receiving a lump sum payment may be more detrimental to you than it is beneficial to the potential Medicaid applicant. An Elder Law attorney may be able to provide your family with other alternatives.
Multi-generational living arrangements are not new, and as people are living longer it may start becoming more common. Shared households bring many benefits, including convenience. Why should a nurse daughter travel 20 miles a day to take her mom’s blood pressure, asks The Mercury’s article “Do shared living arrangements make sense?”
There’s also the benefit of increased financial security. Two households merged into one can share expenses, including mortgages, property taxes, utilities and more.
Whether this works in each case depends upon the situation and the relationships of the individuals involved. If there is flexibility and relationships are good, it can be a blessing. Imagine grandparents and grandchildren who are part of each other’s lives on a daily basis, rather than a twice-a-year visit. That’s a gift.
Multi-generational living arrangements need to start with a lot of discussions and good understanding of the wants and needs of each participant. It also needs to be based on reasonable expectations. A happy joint living arrangement can swiftly be derailed if parents assume that grandparents are willing to be 24/7 babysitters, or if grandparents consider household chores something for their children and grandchildren to do.
Joint living arrangements must also address financial considerations, estate planning, and everyone’s personal experiences and convictions. What works for one family may not work at all for another. Each family must work through their own details.
Here are some examples where a multi-generational living arrangement works.
Parents and children buy a house together. When parents and children live too far away, and the parent’s house would require too much modification for them to continue to live there, both sell their homes and buy a much bigger home that can be made handicapped accessible. The parents make most of the down payment. The house is titled in joint names. Titling is critical. One half is owned by the father and mother, the other half is owned by the spouse and adult child. Each half would be tenants by entireties (in states where that form of ownership between spouses is available) as between the spouses, but joint tenants with rights of survivorship as to the whole.
Parent moves in with adult child. A widow or widower comes to live with a son or daughter and their family. The parent makes contributions to the monthly expenses. A written agreement is very important for Medicaid rules regarding gifting. If modifications need to be made to the house—a mother-in-law suite, for example—a written agreement would detail who contributed what so that it is not considered a “gift” by Medicaid.
Adult child moves in with parent. This is a “buy-in,” where an adult child obtains a home equity line of credit to purchase an interest as joint tenant with right of survivorship. The house can be inherited by paying one-half of the value.
None of these strategies should be done without the help of an elder law attorney who is knowledgeable about Medicaid, estate planning, tax planning, and real estate ownership. When it works, this multi-generational living arrangement can benefit everyone in the family.
I’m not a doctor, but I’ve watched lots of Grey’s Anatomy. Would you trust me to give you sound medical advice or write you a prescription? Probably not. But apparently some doctors think they’re qualified to give legal advice.
Maybe they binge-watched Law and Order or stayed at a Holiday Inn Express. I don’t know. But, sadly, people will rely on their bad legal advice – just because they’re doctors. And perhaps also because it’s what they want to hear.
I’ve written several articles about guns and marijuana, so my professional curiosity made me read this article. From the first sentence, I could tell it was heavily biased – marijuana is the Holy Grail, Hallelujah! That was fine – I personally don’t care about pot one way or the other. But it made me quickly scroll to the bottom to see who wrote the article… a medical marijuana doctor. Hmm.
The part of the article that made the hairs on my neck stand up was this:
Many people wanting medical marijuana avoid it because they fear they might not be able to own guns. This is not true. You can own guns and in fact have a concealed carry permit in Florida and have a medical marijuana card, no problem.
As an actual Florida lawyer who takes an avid interest in gun law, I can tell you that the last sentence is legally false.
I’ve written and presented about this over and over again, but people who have a vested interest in peddling pot keep telling the same lies to people who want to believe those lies.
I’ll break it down very simply:
Federal laws trump state laws when it comes to drugs. Under federal law, marijuana of any kind is a Schedule I drug – totally illegal. Florida and some other states have chosen to look the other way within their borders, but that doesn’t change the federal law.
Federal laws trump state laws when it comes to guns. Under federal law (18 U.S.C. § 922(g)(3)), you cannot possess a gun if you are a user of an illegal drug (pot, heroin, meth, crack, etc.) – or an abuser or illegal user of a legal drug (taking your spouse’s prescription meds, abusing prescription opioids, etc.). A federally-licensed gun dealer makes you swear on a form that you don’t do any of that, and even private sellers cannot legally sell to anyone they suspect may fall into any of those or other prohibited categories. States can be more restrictive, but they can’t override the federal gun laws. You must comply with all the federal gun laws first, and then comply with the state gun laws.
Florida’s concealed carry licensing statute specifically states in Fla. Stat. 790.06(2)(n) that you can’t get a concealed carry license if you’re prohibited from owning guns under any federal law. Logically, that would also mean that you cannot keep your concealed carry license and carry a gun (you could carry a concealed knife) – if you use medical or recreational pot.
Bottom line? If you choose to use medical or recreational marijuana, you’re prohibited from possessing guns under federal law. And having a concealed carry license for something you’re not allowed to have makes no sense.
Will you get caught? Who knows. We weigh that risk every time we choose to break any law. But keep in mind that the penalties are steep – they’re felonies. And yes, I realize that our own Dept. of Agriculture Commissioner is flagrantly breaking state and federal laws by telling medical marijuana users that they can have a concealed carry license. But that doesn’t make it legal.
Remember…when seeking medical advice, ask a doctor. When seeking legal advice, ask a lawyer. And also remember that Google is neither.
My husband and I recently executed a deed to transfer a piece of real estate to our revocable living trust, and today we received the notice you see in the photo. We had a good laugh – this wasn’t our first rodeo, so we knew it was a scam – but then I realized many people wouldn’t recognize it as a scam.
The letter looks pretty official – it has the correct names, property address, parcel identification number, and description of the property. Even though it states that they’re not associated with any governmental agency, people tend to overlook that. I get phone calls quite frequently from clients wondering whether they should send this company (or others like it) $95 for a copy of their deed and a copy of the Property Assessment Profile Report. I assure them they should NOT send anyone any money for those things.
First, if you signed your deed in a Florida attorney’s office, he or she should have mailed you the original signed deed after it was recorded (I do). So, you likely already have the original recorded deed somewhere in your papers.
Second, if you can’t find a copy of your deed, you can go online to the appropriate county’s Official Records (sometimes called Public Records) website, type in your name, find your deed (note: very old deeds may not be viewable online), and download or print an unofficial copy which shows when it was recorded. It’s free in most Florida counties. Here’s a link to Sarasota’s Official Records search.
If your deed is too old to be viewed online, or you actually need a certified copy of your recorded deed for some reason, then jot down the Book and Page number (usually in xxxx/xx format) or Instrument Number you found in the Official Records and contact your county clerk’s recording office to find out how to get a photocopy or a certified copy – generally for under $5.00.
Third, all the other information they want you to pay for is free on your Florida county’s Property Appraiser’s website. Here’s a link to Sarasota’s.
So, don’t be fooled by these scammers. Whenever you get something you’re not expecting, READ IT CAREFULLY. If you’re still not sure, and you’re one of my clients, call me. I’ll let you know if it’s legit or not.
Did you know that the federal government regulates funeral homes? I don’t remember seeing that power mentioned in the Constitution, but…
Yes, the Federal Trade Commission (FTC) mandates that people shopping for burial and cremation services must be provided certain information and must be provided itemized price lists for services and caskets so they can compare apples to apples as they shop. For example, prices must be provided over the phone as well as in person, and the funeral home must explain that embalming isn’t always required (no state laws requires routine embalming for every death).
But the FTC isn’t sure how well its rules are actually working, and is asking for your input as to whether the Rule is still needed and what your shopping experience was like.
You can learn more about the FTC’s Funeral Rule and give your input by clicking here.
Caregivers tend to be so over-scheduled that they put off making preparations for a rainy day, like getting legal documents in place. When you feel as if your to-do list gets longer every day, planning for a potential future emergency can take a back seat to juggling your day job, your children, and taking care of your aging relative.
Before you can go to the lawyer and get documents drafted, you need to know what your aging relative’s wishes are. Find out if she has already made any arrangements or signed legal documents. You might not need to do as much as you think. Make sure these documents are not in a safe deposit box, since you will need a court order to open the box after your relative dies if you are not authorized on the account.
Gather all the existing legal papers and go through them with your loved one to see if the documents need to be updated or changed. People often make a Will, for example, and stick it in a drawer. Thirty years later, when the Will gets dusted off for probate court, you discover that none of the beneficiaries of the Will is still alive.
Here are some of the topics you might want to discuss with your relative:
Who should make his medical and financial decisions, if he cannot do so. These might be two different people.
End-of-life decisions about hospice, life support, and organ donation.
What funeral and burial arrangements he would like, if he does not have a pre-paid plan and burial plot.
The organization to which he would like donations sent, in lieu of flowers, if that is his preference.
How he wants his property distributed after death.
Getting the Legal Documents
Once you have compiled all the information and old papers, you and your relative should talk with a lawyer to get documents drafted. Depending on the situation, your loved one might need some or all of these legal papers:
Durable power of attorney for financial decisions, to appoint someone to act on his behalf, if he becomes unable to do so.
Durable power of attorney for health care decisions, so the named person can make medical decisions, if he becomes incapacitated.
HIPAA medical records release, so the person who makes the medical decisions can have access to his medical records to make informed decisions.
Will or living trust, to distribute his assets when he dies.
Depending on his wishes, you might need a Do Not Resuscitate Order (DNR), health care directive with specific instructions about particular types of life support, or Physician Orders for Life-Sustaining Treatment (POLST). Your elder law attorney can guide you toward the correct form for your state.
Once you take these measures, you can relax and enjoy the time you spend with your loved one, knowing you are well-prepared for whatever the future brings.
Your state might have different regulations than the general law of this article. You should talk with an elder law attorney near you.
If you’re on Medicare, your coverage away from home depends partly on your destination and whether you’re on basic Medicare or receive your benefits through an Advantage Plan. It can also can depend on whether the health care you get is routine or due to an emergency.
Travel medical insurance can be the solution to gaps in coverage, but it’s good to first determine whether you need it. Remember that original Medicare consists of Part A and Part B. Retirees who opt to stay with just this coverage—instead of going with an Advantage Plan—typically pair their coverage with a stand-alone prescription-drug plan (Part D). If you fit in this situation, your coverage while traveling in the U.S. and its territories is fairly simple. You can go to any physician or hospital that accepts Medicare, regardless of the type of visit.
However, when you journey beyond U.S. borders, things get more complex.
Generally, Medicare doesn’t provide any coverage when you’re not in the U.S – with a couple of exceptions. These include if you’re on a ship within the territorial waters adjoining the country within six hours of a U.S. port or you’re traveling from state to state but the closest hospital to treat you is in a foreign country. As an example, think about a trip to Alaska via Canada from the 48 contiguous states.
Roughly a third of retirees on original Medicare also buy supplemental coverage through a Medigap policy (but you can’t pair Medigap with an Advantage Plan). Those policies, which are standardized in every state, vary in price and offer coverage for the cost-sharing parts of Medicare, like copays and co-insurance. There are some Medigap policies—Plans C, D, F, G, M and N—that offer coverage for travel. You pay a $250 annual deductible and then 20% of costs up to a lifetime maximum of $50,000. However, that may not go very far, depending on the type of medical services you need.
There’s also no overseas coverage through a Part D prescription drug plan, and Medigap policies don’t cover any costs related to Part D, whether you’re in the U.S. or not. For seniors who get their Medicare benefits—Parts A, B and typically D—through an Advantage Plan, it’s a good idea to review your coverage, even if you’re not leaving the U.S. any time soon. These plans must cover your emergency care anywhere in the U.S., but you may have to pay for routine care outside of their service area or you’ll pay more.
Some Advantage Plans may also have coverage for emergencies overseas, so review your policy. Whether you have an Advantage Plan or original Medicare, travel medical insurance might be a good move if you think your existing coverage isn’t enough. The options are priced based on your age, the length of the coverage and the amount. In addition to providing coverage for necessary health services, a policy usually includes coverage for non-medical required evacuation, lost luggage and dental care required due to an injury.
There’s coverage for a single trip of a couple weeks or several months, or you can buy a multi-trip policy, which could cover a longer time period.
It’s also important to know if your policy covers pre-existing conditions, since some don’t. You should also be aware that some Advantage Plans might disenroll you, if you stay outside of their service area for a certain time, usually six months. In that situation, you’d be switched to original Medicare. If you are disenrolled, you’d have to wait for a special enrollment period to get another Advantage Plan.
Quite often, a person who calls into our office starts the conversation with something along the lines of “I just need a simple Will leaving everything to my son.” Sometimes they do, but, more often than not, their situation really isn’t “simple,” and their current “plan” is a time bomb waiting to destroy their family.
During our conversation, I discover that the caller is 78 years old, divorced, and in poor health due to a chronic disease. She has three adult children, about $300,000 in assets including her home, and has added the oldest son as a joint owner on her bank accounts, safe deposit box, and her home. She has no long-term care insurance, Durable Power of Attorney, Designation of Health Care Surrogate, or Living Will. She’s calling about a Will because a friend told her that she needs a Will to avoid probate when she dies.
First, I explain that her well-meaning friend was incorrect – a Will actually mandates probate. A Will tells the probate judge who gets the assets that are subject to probate after the court proceeding is done in 6-9 months. Probate can be avoided by other strategies, but those strategies also have some drawbacks that need to be evaluated for each situation.
Then I ask why she’s disinheriting her other children. “Oh, no,” she says. “I’m not disinheriting my other children. I love them. I’m leaving everything to my son because that’s much simpler for me, and he’ll share with his siblings.”
Maybe he will, maybe he won’t. The fact is, most of the time, he won’t. I know, because I get those calls, too, from the siblings who didn’t know their brother would inherit everything and they’re legally entitled to nothing. Mom’s wishes are just that – wishes.
I explain that by naming her son as her sole beneficiary in her Will and as joint owner on her bank accounts and home, her other children will be legally entitled to nothing. Her son will have absolutely no legal obligation to share one cent with anyone when she dies. He will be the sole legal owner. Siblings are notorious for spats and rivalry. The fact that she left everything to him – no matter what her thoughts and wishes were – will deeply hurt her other children and could permanently ruin their relationship with their brother and tarnish their memory of their mother.
In addition, while she’s alive, her bank account and home are wide open to her son’s creditors – including accident victims, the IRS, and a divorcing spouse. Not only that, but by adding him as a joint owner on her home that she’s owned for 30 years, he’s stuck with her low cost basis in the home and he’ll likely end up paying capital gains taxes when he sells it at her death. But if her children inherited the home at her death, they’d inherit it at the higher fair market value as of her date of death, and likely owe no capital gains taxes if they sell it immediately.
Then I ask why she doesn’t have a Durable Power of Attorney, which names the people who would have the legal right to act on her behalf for financial or legal matters – pay her bills, sign contracts, sue, sell property, open and close bank accounts, talk to the IRS, apply for Medicaid, etc. She says, “But I don’t need that. My son is on my bank accounts and house, so he can handle anything that needs to be done with those.” I explain that no, he can’t. Yes, he can sign checks, but he can’t legally speak for or sign anything on her behalf. He can’t sell or mortgage the house by himself. And even worse, if her health gets to the point where a nursing home is needed, he can’t hire an elder law attorney to get her qualified for Medicaid unless he goes to guardianship court.
She never heard of a Designation of Health Care Surrogate. She assumed her son would easily be able to make medical decisions for her because he’s her son. I explain, that yes, under Florida law, since she’s not married, her children are authorized under our statute to make medical decisions for her. But the statute doesn’t say which child – all the children have equal status. So, which child should the doctors listen to? What if the children disagree about something or one beats the others to the punch when a decision has to be made? A Designation of Health Care Surrogate solves those problems.
I then ask whether she’s ever discussed her end-of-life wishes with her children. “No,” she says. “Every time I bring it up, they don’t want to listen and change the subject.” So, her children could end up arguing over whether or not they should “pull the plug.” No matter what they decide, if they love her, they may have lifelong guilt because they’ll fear they made the wrong decision. I explain that a Living Will allows her to state her desire to die a natural death – not be hooked up to nutrition, hydration or respiration – when there’s no reasonable hope for recovery, and her Health Care Surrogate must enforce that on her behalf. This simple document takes that awful decision-making burden off her children’s shoulders.
At the end of our conversation, she may or may not decide to change her plan to make it more family-friendly, but at least now she has a better understanding of what her choices mean for her family.
They’re afraid their children will take their victimization as a sign that they are no longer able to care for themselves and they’ll lose their independence. However, there are ways children can help their parents protect themselves with empathy and kindness.
Grown children should gently discuss the topic of their parents’ vulnerability. The conversation needs to be non-patronizing. Studies have shown that people become less skeptical and more impulsive as they age. The scammers know this, and they prey on the elderly for this reason. They also know where the money is: seniors lose an estimated $36.5 billion to scammers every year.
The scammers are also aware that open lines of communication between elderly parents and their children can cause a scam to fail. If a parent and child are in regular communication, the scammer’s plea that the grandson has been arrested and needs bail money won’t work. The grandparents need only send a text to learn that their grandson is alive and well on their college campus.
In one such case, the predatory scammer told the elderly couple not to notify their grandson’s parents so they could avoid a family scandal. The couple sent the scammers two large payments before realizing they were being duped. When they finally notified their son and the entire story came out, they agreed to accept his help in avoiding being scammed again.
Keeping the conversation as light as possible will make it easier for everyone. A simple “Hey Mom, did you hear about this scam?” is going to be a lot easier to take than a “Can you believe anyone was that stupid to fall for this?” approach. Add the question “What would you do if you got a call like that?” Once a conversation has started, it will be easier to transition into other concerns.
Remember that this generation was raised with different social rules. They were taught to be polite and may hesitate to cut off a fast talker. A script written on a pad kept by the phone may be helpful: “I don’t do business over the phone until I speak with my son. Goodbye.”
People who are now in their 70s and 80s grew up in a world without smartphones or computers. They may find basic technology a little confusing, even if they are fans of how easy it is to stay in touch with grandchildren. They often do recognize that they need help and are likely to defer to children or grandchildren when accepting help with technology issues.
One more generational issue to address: carrying a Social Security card in a wallet. These numbers are a gold mine for scammers, which is why the numbers no longer appear on Medicare cards. Ask where this card is kept, and make sure it’s in a secure place.
The best time to have these conversations is early, before a scam occurs and while aging parents are still sharp enough to fully understand the issues being addressed.
Raising your kids, working, trying to take care of yourself, and now caring for an aging parent? That makes you part of the Sandwich Generation. You are not alone—almost half of America’s 40-60 year olds are in the same boat.
Most of us have adjusted to balancing children, work and finding some time for ourselves. But when we add caring for an aging parent, it often becomes too much. And usually it’s the “me” part that is sacrificed…until you hit burn out.
Here are some ways to leverage your time and resources so you can also take care of yourself.
Enlist Your Kids
Even the smallest child can spend charming one-on-one time with a grandparent. If your parent lives with or near you, they can spend time together in person. Adult children can take Grandma or Grandpa out for a meal or a movie – or spend an evening sharing a pizza and watching Netflix. If your parent is not near you, they can Skype on the computer, use FaceTime or play multi-player online games. Your children, no matter what their ages, will benefit from spending time with Grandma or Grandpa, they will see how you value and care for aging family members—and you will get some extra time to return phone calls, make dinner, or even catch a quick nap!
Ask About Options at Work
Check with your employer’s human resources department about resources that might be available to you. Depending on how long you expect to be caring for your parent, there may be a multitude of options available to you, including elder care research and referral services, flex time, even working from home options. The Family and Medical Leave Act (FMLA) calls for eligible employees to receive 12 weeks of unpaid job-protected leave. (Private employers with less than 50 employees are exempt.)
There are legal and community resources that can help you make the best care and financial decisions for your parent. A local Elder Law attorney can prepare the necessary legal documents and help you maximize your parent’s income, long-term care insurance and retirement savings, and qualify for VA or Medicaid benefits, if applicable. He/she will also be familiar with various living communities in the area and in-home care agencies. You can also hire someone to review and verify/dispute insurance claims and medical billing.
Find Your “Me” Time
As a member of the Sandwich Generation, stress is your biggest enemy and you have to find ways to reduce it. Joining a caregiver group, in person or online, will let you share your questions and frustrations, and learn how other caregivers are coping. Don’t be afraid to ask favors of friends and other relatives, such as picking up your kids while you go to the doctor with your parent. You could also learn to order in dinner every now and then without feeling guilty. Learn what you need to maintain your stamina, energy and positive outlook. That may include regular exercise (a yoga class, walk or run), a weekly outing with friends, or time to read or simply watch TV.